from the District Court of Ward County, North Central
Judicial District, the Honorable Douglas L. Mattson, Judge.
Garrett D. Ludwig, Mandan ND, for petitioner and appellant.
A. Dillon, Minot, ND, for respondent and appellee.
1] Heather Leavitt appeals from a district court order
summarily dismissing her application for post-conviction
relief. Heather Leavitt argues the district court erred in
summarily dismissing her application because she received
ineffective assistance of counsel. We affirm the district
2] In 2014 a jury convicted Heather Leavitt of attempted
murder. Her conviction was affirmed in State v.
Leavitt, 2015 ND 146, 864 N.W.2d 472. There we
summarized the facts of the underlying case as follows:
"On February 1, 2014, Timothy Leavitt woke up to being
stabbed by an assailant in his home in Minot; he sustained
serious injuries during the ensuing struggle, but was
ultimately able to flee to safety. Although he was unable to
positively identify his attacker, he described the assailant
to authorities as 'having a pony-tail, the same stature
as his wife [Heather Leavitt].' He described the knife
used in the attack as having a black handle with metal dots
and a long silver blade and noted it was identical to a set
of knives he and his wife owned, which were no longer in his
home, but were in his wife's possession. He also informed
officers he lived in the house alone, he and his wife were
separated, and they were sharing custody of their children.
Officers observed evidence of an attack at the home and
'bloody footprints (stocking feet)' throughout the
home and adjacent yards. A black stocking hat with darker
blonde hair was found under the bed and a pony-tail band was
also found in his home.
"Based on the authorities' investigation, Sergeant
David Goodman applied for a search warrant to search Heather
Leavitt's person, home, and vehicle, and Goodman provided
an affidavit in support of his application. A search warrant
was issued, officers executed the warrant, and evidence was
collected. During the search of Heather Leavitt's home,
officers seized her cell phone. Officers later applied for
and received a warrant to search the phone's contents.
Heather Leavitt was charged with attempted murder, and before
trial, she moved to suppress evidence obtained from the two
search warrants. At the hearing on the motion, the State
conceded that any evidence obtained from Heather
Leavitt's cell phone should be suppressed. The district
court granted Heather Leavitt's motion to suppress as to
the search of her cell phone, but denied it as to the search
of her person, home, and vehicle. A jury ultimately convicted
Heather Leavitt of attempted murder."
Id. at ¶ 2 and ¶ 3.
3] In March 2016 Heather Leavitt applied for post-conviction
relief, arguing she received ineffective assistance of
counsel. In April 2016 the State moved for summary
disposition, arguing Heather Leavitt failed to raise a
genuine issue of material fact. Heather Leavitt filed a
motion to stay the determination of the State's motion
for summary disposition until she filed a supplemental brief.
The district court granted her motion. In May 2016 Heather
Leavitt filed a supplemental application, arguing she
received ineffective assistance of counsel when the lawyer
representing her at trial failed to demand a Franks
hearing because the affidavit on which the search warrant
relied contained false and misleading statements and because
favorable evidence was not presented at trial. The State
renewed its motion for summary disposition. In November 2016
the district court granted the State's motion, dismissing
Heather Leavitt's application. Heather Leavitt appeals.
4] "Post-conviction relief proceedings are civil in
nature and are governed by the North Dakota Rules of Civil
Procedure." Kinsella v. State, 2013 ND 238,
¶ 4, 840 N.W.2d 625 (quoting Clark v. State,
2008 ND 234, ¶ 11, 758 N.W.2d 900). "A district
court may summarily dismiss an application for
post-conviction relief if there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law." Howard v. State, 2015 ND 102,
¶ 8, 863 N.W.2d 203 (quoting Waslaski v. State,
2013 ND 56, ¶ 7, 828 N.W.2d 787). "When reviewing
an appeal from a summary denial of post-conviction relief, we
review it as we would an appeal from summary judgment."
Id. "The party opposing the motion is entitled
to all reasonable inferences at the preliminary stages of a
post-conviction proceeding and is entitled to an evidentiary
hearing if a reasonable inference raises a genuine issue of
material fact." Lindsey v. State, 2014 ND 174,
¶ 7, 852 N.W.2d 383 (quoting Coppage v. State,
2011 ND 227, ¶ 8, 807 N.W.2d 585).
5] If the State moves for summary disposition, the petitioner
must support the application with evidence. Delvo v.
State, 2010 ND 78, ...